Last week Western Cape Premier Helen Zille made various comments suggesting that the provision of healthcare to those who behave "irresponsibly" should be reconsidered. Writing in her weekly newsletter, the Premier noted that over half of the Province's budget is spent on "preventable illness", while the "scraps" are given to unpreventable conditions. This, she claimed, "has further widened the gap between "rights" and their "essential corollary - responsibility". Specifically citing people who contract HIV through "irresponsible" behavior she rhetorically questioned why "taxpayers must foot the bill without asking any politically incorrect questions - enough already!". She later tweeted that "if you duck responsibility, don't come running to the state when you need treatment".

A few days later - at a provincial health summit - the Premier went further to say that people who knowingly infect others with HIV should be charged with attempted murder.

The premier's views are possibly popular across the political spectrum, but they are misinformed and unscientific. This debate is repeated periodically. Here are some rebuttals of the arguments the premier puts forward:

• Doron Isaacs has written a succinct rebuttal of the criminalisation of HIV.
• Judge Edwin Cameron has co-authored an in-depth explanation of why criminalisation of HIV is wrong. 
• Gavin Silber has previously argued against the Premier's positionwhen she made similar arguments in 2009.
• Edwin Cameron and Nathan Geffen debated David Benatar on whether a person contracting HIV through his or her irresponsibility has a right to treatment.

This article first addresses arguments about why the Premier's arguments on responsibility are wrong. We then deal with criminalisation. Finally we deal with the Premier's concern that HIV treatment is taking resources away from unpreventable diseases.

Why the Premier's arguments on responsibility are wrong

1. The premier's proposal is unconstitutional

The Constitution says that everyone has the right to have access to health care services and that the state must, within its available resources, realise this right. The Constitutional Court has found that the state, because it has limited resources, can limit the provision of a health service using reasonable criteria, such as how well patients will respond to treatment. But it is unlikely that the court would consider the way an illness was contracted to be a reasonable criterion.

2. Provision of health-care based on "responsibility" Is impractical

It is impractical to provide antiretroviral treatment depending on how people contract HIV. Health workers cannot be expected to investigate how their patients became infected. Besides being an invasion of privacy, it is often impossible to determine this reliably. Also, on what criteria is a health worker supposed to decide if the particular behaviour that resulted in infection was irresponsible or not?

3. The consequences of the Premier's proposal are untenable

Consistently only providing medical care to people based on "personal responsibility" leads to frightening consequences. It would mean cigarette smokers would not get treated for cancer. People who eat unhealthily would not get treated for type II diabetes or heart disease. The same for people who don't look after their teeth properly, or suntan too much and develop skin cancer, or sportsmen who over-train and injure themselves. There is no precedent for providing health-care only to people who live a life of perfect responsibility.

4. Treatment based on "responsibility" discriminates against the poor

People who can afford private health care would still be treated irrespective of how they contracted HIV, or for that matter any other ailments acquired through irresponsible behaviour. It is only poor people who use the public health system who would be affected by Zille's proposal.

5. Providing antiretroviral treatment is an effective way to reduce HIV transmission

Zille laments the large sums of money spent on AIDS treatment, as opposed to prevention. However, science shows that HIV-positive people on treatment with an undetectable viral load are unlikely to transmit HIV. Studies in several cities around the world have shown a decline in new HIV cases, as antiretrovirals are scaled up. On balance, the evidence shows that the rate of new HIV infections is declining in South Africa. Antiretroviral treatment is likely one of the factors contributing to this. Providing treatment as widely as possible is not only good for personal health, but is also a critical public health intervention.

6. Withholding antiretroviral treatment has huge costs

People on antiretroviral treatment have almost normal life-expectancy. But people denied treatment will frequently get opportunistic infections and need to be hospitalised. Failing to provide treatment will cause poor families great emotional and economic hardship. Parents will be far more likely to die young and there will be more orphans.

Why the Premier's arguments on Criminalisation are wrong

7. Preventing HIV transmission should be based on science not morals

Moral judgments about responsibility are easily made by people who never have to face the choices about sex that many poor people in this country constantly have to make. Reducing HIV transmission should be based on science, not moralizing.

In a Cape Argus interview last week, Zille claimed that countries in Europe that criminalized HIV transmission had "beaten" the HIV epidemic. But no country in Western Europe, whether or not it has criminalized transmission, has had a large HIV epidemic. What does she mean by "beaten"? If she means a reduction in HIV incidence, there is no evidence that criminalisation is associated with reduced incidence.

On the contrary, criminalisation will stigmatise the disease further and discourage people from getting tested and finding out their status. The Premier's response to this is to make HIV testing "mandatory". Besides the appalling human rights consequences of this argument, the state does not have the capacity to do this.

On the other hand, the programme of voluntary counselling and testing introduced into the health system is resulting in millions of people getting tested. Why would Zille want to change an approach that is starting to produce results?

8. People are most infectious just after becoming infected

A challenge of HIV prevention is that people are most infectious just after becoming infected, when they do not know their HIV status and cannot yet determine it using standard tests. Neither criminalisation nor mandatory HIV testing can address this, but scaling up antiretroviral treatment might.

9. Criminalisation removes responsibility from uninfected people

An important HIV prevention message is that people should take responsibility for their own HIV status. For an HIV-negative person this means assuming that your sexual partner or partners are HIV-positive and therefore practising safer sex. Criminalising HIV-positive people who have unprotected sex sends the message that their HIV-negative partners do not have to take equal responsibility to practice safer sex.

10. Current laws sufficiently deal with intentional transmission of HIV

Very few people intentionally transmit HIV. Those that do can and should be prosecuted under assault laws. HIV is no longer a fatal disease, but a chronic condition much like diabetes.

11. We know of no other sexually transmitted infection whose transmission is expressly criminalised

Human pappiloma virus is a sexually transmitted infection and the cause of cervical cancer. Its transmission is not criminalised. Hepatitis is often transmitted sexually; it is frequently a lifelong chronic illness that is sometimes fatal. Its transmission is not criminalised.

It would be inconsistent to demand the specific criminalisation of only one sexually transmitted infection. It would be impractical to criminalise the transmission of most or all sexually transmitted infections.

12. It is extremely hard to scientifically determine who infected whom

HIV mutates quickly and it is almost always impossible for genetic tests to determine routes of transmission to determine who infected whom.

Spending on HIV versus spending on the disabled

The Premier argues that HIV treatment takes resources away from other health services, such as those for disabled children. In reference to deaf children, she claimed that "there are protests outside my office every week on almost every conceivable issue. Why is no-one out there protesting for the rights of these children? Is it because people with disabilities are not regarded as fully human?"

13. The Premier has missed opportunities to provide care to the disabled

But both the Western Cape and national governments opposed a court action on behalf of severely mentally disabled children requesting special provisions for their education.

Although the case was brought against the Western Cape government when the ANC was in power, it was only heard in 2010, a year into the DA's rule. The Premier had the opportunity not to oppose the plaintiff's demands. Instead the Western Cape government argued, shockingly, that "for children who do not qualify for admission to special schools, no amount of education would be beneficial". The court found for the plaintiff.

Zille's comments create competition for resources between people with HIV and disabled people for limited public health sector resources. A better strategy would be to look for ways to make the public health system less wasteful and to get the private sector to take responsibility for a greater share of the health burden.

14. Government can do more to reduce preventable illness

The Premier is right to be concerned about the large burden placed on the public health system by preventable illnesses. But there are far more productive ways for government, both nationally and provincially, to reduce disease. For one thing condoms should be available in all schools, along with sex education programmes. Many youths have sex. Pretending they do not is a recipe for increased HIV incidence and teen pregnancies.

One of the biggest causes of preventable childhood disease and infant mortality is diarrhea. This is in most cases directly attributable to poor communal sanitation facilities in informal settlements. The provincial health department has an important role in monitoring environmental health and diarrhea in these communities. While much has been done to improve treatment of diarrhea, a lot more needs to be done to address the root cause. In August this year, a Western Cape Provincial Government presentation was released showing serious shortcomings with repairs of standpipes and toilets in informal settlements - most faults reported were never addressed. Working with municipalities to ensure that there is adequate monitoring to identify problem areas -and to then address them swiftly- would contribute enormously to reducing this easily preventable illness, which strains the public health system. 

Premier Zille's prescriptions would violate the Constitution, discriminate against the poor, increase stigma, and ultimately be counter-productive. Her views might be popular, but if they were implemented they would cause terrible harm

This is an expanded version of an article that first appeared in The Cape Argus

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